427 Pa. 624 | Pa. | 1967
Lead Opinion
Opinion by
The General State Authority (General), on this appeal questions the propriety of an order of the Court of Common Pleas No. 2 of Philadelphia County dismissing the Authority’s preliminary objections in an equity action. The sole issue is whether exclusive venue in litigation wherein the Authority is being sued lies in Dauphin County.
The United States Cold Storage Corporation and Philadelphia Warehousing and Cold Storage Company (Storage Companies), instituted this equity action in Philadelphia County against the City of Philadelphia (City), the Authority, Lavino Shipping Company (La-vino), and Pennsylvania Refrigerated Terminals, Inc. (Terminals), to restrain the construction of a cold storage warehouse as part of a port complex known as the Packer Avenue Marine Terminal. The Storage Companies operate cold storage and refrigerated facilities in the same area wherein this marine terminal is to be constructed with joint financing by the City and the Authority and the marine terminal will be leased to Lavino and the cold storage warehouse unit to be located therein will be leased to Terminals. The gravamen of the Storage Companies’ complaint is that, insofar as the Authority is concerned, the proposed construction offends the General State Authority Act (Act of March 31, 1949, P. L. 372, §4, as amended, 71 P.S. §1707.4) which proscribes the exercise of the Authority’s power to construct any project which, “in whole or in part, shall duplicate or compete with existing enterprises serving substantially the same purposes” and the contemplated project will duplicate and compete with the Storage Companies’ present cold storage and refrigerated facilities.
On the authority of Pa. R. C. P. 1503(c), the Authority urges that Dauphin County alone has venue in any action against it. That Rule provides: “Venue . . .
The Authority has the right and power “to sue and be sued, implead and be impleaded, complain and defend” (§4 of the General State Authority Act, 71 P.S. §1707.4(b)) and the legislative language further expressly provides such right to sue and the power to be sued exists “in all courts”. Appellees contend the language of that statute is in conflict with Rule 1508(c).
That the Authority is an “instrumentality of the Commonwealth” is well settled (Act of March 31, 1949, P. L. 372, §3, as amended, 71 P.S. §1707.3; Marianelli v. General State Authority, 354 Pa. 515, 516, 47 A. 2d 657 (1946)) and, certainly, clearly within the language of Rule 1503(c).
It is argued that the practicalities of the situation require the application of the General State Authority Act and permit suit against the Authority and the City in Philadelphia County. Pa. R. C. P. 2103(b) provides: “Except when the Commonwealth is the plaintiff or when otherwise provided by an Act of Assembly, an action against a political subdivision may be brought in and only in the county in which the political subdivision is located.” Under that Rule, it is argued that the City cannot be sued in any county other than Philadelphia County and, if the Authority cannot be sued other than in Dauphin County, then of necessity, two separate actions involving identical issues would have to be instituted by the Storage Companies in two separate counties.
The Authority relies on Merner v. Department of Highways, 375 Pa. 609, 101 A. 2d 759 (1954). In Merner, an equity action was instituted against the Depart
As an instrumentality of the Commonwealth, under Buie 1503(c), the Authority cannot be sued other than in Dauphin County. The problem presented in the case at bar of having to institute two separate actions involving identical issues in two separate counties has now been solved by the adoption of Buie 1006(c) which became effective September 1, 1967. That Bule pro
Order reversed.
Appellees pay costs.
The act which created the School Authority (Act of July 5, 1947, P. L. 1217, as amended, 24 P.S. §791.1 et seq.), in language identical with the language in the General State Authority Act, supra, empowers the School Authority “to sue and be sued” in “all courts”. See also: Act of June 21, 1937, P. L. 1982, No. 392, §1, 17 P.S. §61, as amended, suspending procedural statutes inconsistent with Rules of Civil Procedure.
This Rule was not in effect when the court below made its order and was not called to the court’s attention. • •
King v. Security Co. of Pottstown, 241 Pa. 547, 551, 552, 88 A. 789 (1913); Kilian v. Allegheny County Distributors, 409 Pa. 344, 350, 185 A. 2d 517 (1962); Flaherty v. United Engineers & Constructors, Inc., 191 F. Supp. 661, 662, 663 (1961).
Dissenting Opinion
Dissenting Opinion by
• The statute which created the General State Authority explicitly states that the Authority has the power “to sue and be sued, implead and be impleaded, complain and defend in all courtsP Act of March 31,
Our decision in Merner v. Department of Highways, 375 Pa. 609, 101 A. 2d 759 (1954) does not require a contrary result. It is true that the State Public School Building Authority, a defendant in Merner, was created by a statute containing a provision equivalent to the one in controversy, and Merner can be read to imply that the School Authority was protected by Rule 1503(c) from Bucks County venue. The impact of the statutory provision permitting suit “in all courts” was not discussed, however, for the simple reason that it
Although the transfer provision of Rule 1006(e) does avoid the problem of multiple suits, that is no reason to deprive the appellee of its choice of permissible venues. Furthermore, the legislative waiver of venue as to the General State Authority was probably prompted by a recognition that the Authority’s widespread activities in many traditionally nongovernmental areas might result in litigation more conveniently conducted in local forums. For example, in the present litigation, of the six parties involved, only the Authority is not of primarily Philadelphia origin.
I cannot countenance the majority’s blithe refusal to give effect to the legislatively commanded waiver of venue, and therefore must dissent.
The federal courts have ruled upon the effect of similar language vis-a-vis corporate instrumentalities of the United States government. The Supreme Court has uniformly held that the words “to sue or be sued” must be taken in their usual and ordinary sense. Reconstruction Finance Corp. v. J. G. Menihan Corp., 312 U.S. 81, 61 S. Ct. 485 (1941); FHA v. Burr, 309 U.S. 242, 60 S. Ct. 488 (1940). Venue will therefore lie in any federal district where the corporate instrumentality Is engaged in business when the statutory language permits suit “ ‘in any court of competent jurisdiction, State or Federal.’ ” See Seven Oaks, Inc. v. FHA, 171 F. 2d 947, 948 (4th Cir. 1948). The Seven Oalcs court insisted that this language was without any ambiguity and could find “no reason” to give a restrictive reading to its clear intent.
Our Merner decision was based upon a premise that Rule 1503 reflected a jurisdictional requirement. In that context, any argument that . the phrase “in all courts” contained a waiver of the usual venue requirements would have been fruitless. However, the premise that venue should be equated with jurisdiction was expressly overruled in McGinley v. Scott, 401 Pa. 310, 315, 164 A. 2d 424, 427 (1960), an opinion written by the author of this majority opinion.
Dissenting Opinion
Dissenting Opinion by
I dissent, and would affirm the Order of the Common Pleas Court of Philadelphia because the General State Authority Act is directly in point and prevails over a Rule of Civil Procedure.